USA – Spousal Rape Laws – History & Evolution

USA
– Spousal Rape Laws Continue to Evolve

07/01/09

By
Caroline Johnston Polisi
WeNews commentator

Remnants of the “marital rape exemption” still exist in many
states’ laws, even though all 50 states now criminalize spousal rape. Plea
bargains can also lead to more lenient sentencing. Caroline Johnston Polisi
looks at how these laws have changed.

 (WOMENSENEWS)–The scars on Regan Martin’s wrists are a painful
reminder of a past filled with violence and fear. While handcuffed behind her
back, Martin’s husband brutally beat and raped her, leaving her bloody,
bruised and severely injured on the floor of their Crete, Ill., home.

The 2005 incident began, police reports say, after Martin refused to have
sex with her husband John Samolis.

Sadly, Martin’s story is not uncommon among American women. Studies indicate
that between 15 and 25 percent of all married women have been victims of
spousal rape and some scholars suggest that this type of rape is the most
common form in our society.

Unfortunately, for survivors like Regan Martin, modern U.S. law still retains
vestiges of a misogynistic past.

Creation of
“Marital Rape Exemption”

The so-called “marital rape exemption” has been embedded in the
sexual assault laws of our country since its founding. In its most drastic
form, the exemption means that a husband, by definition, cannot legally rape
his wife. The theory goes that by accepting the marital contract, a woman has
tacitly consented to sexual intercourse any time her husband demands it.

The concept dates back to 18th century common law, and was articulated by
English jurist Matthew Hale as follows: “The husband cannot be guilty of
rape . . . for by their mutual matrimonial consent and contract, the wife
[has] given up herself in this kind unto her husband, which she cannot
retract.”

Over 200 years later, American lawmakers were not ready to do away with
the marital rape exemption, as shown by the Model Penal Code. Drafted in the
1950s, the code states that: “Marriage . . . while not amounting to a
legal waiver of the woman’s right to say ‘no,’ does imply a kind of
generalized consent that distinguishes some versions of the crime of rape
from parallel behavior by a husband. . . . Retaining the spousal exclusion
avoids this unwarranted intrusion of the penal law into the life of the
family.”

States embraced the Mode Penal Code’s endorsement of the marital rape
exemption. In North Carolina, for example, until 1993, the penal code’s
definition of rape noted that a person could not be convicted of the crime of
rape “if the victim is the person’s legal spouse at the time of the
commission of the alleged rape.”

Victim’s rights advocates, lawyers and politicians fought tirelessly to
reverse these laws across the country.

States Begin
Abolishing Exemption

In 1976, Nebraska became the first state to abolish the marital rape
exemption. Other states slowly followed.

The New York case, People v. Liberta, illustrates the modern repudiation
of the doctrine. In 1984, the New York State Court of Appeals finally decided
that there was no basis for distinguishing between marital rape and
non-marital rape. The court noted that “a marriage license should not be
viewed as a license to forcibly rape [the defendant’s] wife with
impunity” and struck the marital exemption from the statue in question
for violation of the state and federal Constitution.

Currently all 50 states criminalize spousal rape, but remnants of the
marital rape exemption are still present in many states’ laws. Most states,
like California, for example, define spousal rape as a separate (and lesser)
offense than stranger rape.

Evidently, Regan Martin’s husband also believed that spousal rape should
be a lesser offense. He exhibited a commonly held assumption among
perpetrators of the crime: that husbands have property rights in their wives’
bodies.

“He thought he had every right to do what he was doing because he was
her husband,” Cherry Simpson, Regan Martin’s mother, told Women’s eNews.

However, since Illinois law has abandoned the spousal rape exemption in
cases of forcible or violent rape, Samolis was initially charged with
unlawful restraint, sexual criminal assault (rape) and aggravated domestic
violence.

But the case never made it to trial.

Plea Bargaining
Away Charges

Plea bargains can be useful because they allow governmental prosecutors to
make practical compromises in cases they believe might not prevail in court.
They are also used in cases in which gathering evidence would be too costly
and time consuming, saving taxpayer dollars and preserving judicial
resources.

But Regan and her family believe that in cases of alleged rape, plea
bargains should never be allowed.

“Rape is rape and to plea bargain it away is unacceptable. This is
just an epidemic for judicial expediency,” said Simpson.

Samolis accepted a plea bargain in Regan Martin’s case. He agreed to plea
guilty to the lesser crime of aggravated domestic violence and in return the
district attorney would drop the rape and unlawful restraint charges.

The news that Samolis would not be prosecuted for the rape devastated
Martin and her loved ones. Samolis ultimately served 19 months in prison for
the aggravated domestic violence charge. The average time served for a rape
conviction is about five years, according to a U.S. Department of Justice
Study.

In response, Martin and her family are working with Illinois Congresswoman
Debbie Halverson, a Democrat, to draft a bill that would prohibit prosecutors
from offering plea bargains to alleged rapists.

A spokesperson for Halverson’s office said the Congresswoman is
“trying to figure out a legislative solution to this problem. Because of
the nature of the laws involved, at this time we are not sure whether this
needs to be addressed in the federal jurisdiction or state jurisdiction
level.”

Regardless of whether or not the bill gets passed, Regan Martin’s story
and her fight for the evolution of criminal sexual assault laws is a powerful
reminder of how far the United States has come in terms of spousal rape
jurisprudence and, perhaps, of how far we still have to go.

#####

Caroline Johnston Polisi is an attorney in New York City. She
has volunteered for Sanctuary for Family’s Courtroom Advocates Project,
helping victims of domestic violence obtain temporary restraining orders
against abusive husbands in the Bronx and Manhattan Family Courts. The project
seeks to educate victims about the legal remedies available, assist them with
safety planning, help them draft petitions and advocate on their behalf
before judges.